Canadian Employment Law Today

Canadian Employment Law Today | 3 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends Human rights damages in wrongful dismissal lawsuits Ontario courts are increasingly using previously little-used powers to award human rights damages By NikoLay ChshErBiNiN EmploymEnT dispuTEs are fre- quently resolved through litigation, where litigants seek a slew of damages ranging from statutory to common law to human rights. Until recently, an award of human rights damages in the context of a wrongful dismissal action has been perceived to be a futile exercise, making lawyers and their cli- ents wondering whether civil courts would order damages for a breach of the Human Rights Code. e breakthrough came in 2013 when, in Wilson v. Solis Mexican Foods Inc., the Ontario Superior Court of Justice exercised its long-dormant remedial pow- ers by awarding a discriminated employee $20,000 in human rights damages. In 2015, in Partridge v. Botony Dental Corporation, the same court, under the pen of Justice Su- san E. Healey, awarded the same amount of human rights damages. is was followed by the Small Claims Court's decision in Bray v. Canadian College of Massage and Hydro- therapy, thereby signaling a decisive shift in favour of protecting discriminated employ- ees in civil courts. Retaliation in breach of Employment standards Act Lee Partridge, 36, had her employment ter- minated for just cause after more than seven years of employment. During her tenure at Botony Dental Corporation, Partridge ini- tially served as its dental hygienist and then as its office manager for more than three years. Following her return from a second maternity leave, the employer directed her to assume her former hygienist duties, with fewer hours of work and at a lower hourly rate. Partridge resisted and reminded her employer of her statutory right, codified in s. 53 of the Ontario Employment Stan- dards Act, 2000 (ESA), which entitled her to be reinstated to the office manager po- sition she occupied prior to her maternity leave. In response, the employer retaliated by asserting that the officer manager posi- tion was no longer available and demanded that, effective immediately, she work until 6 p.m. for three out of her four workdays — while knowing this schedule would con- flict with Partridge's daycare arrangements. Subsequently, Partridge was summarily dismissed for allegedly displaying insub- ordination, contemplating to establish a competing business and, inter alia, copying confidential client records for that purpose. Partridge sued for wrongful dismissal. no contracting out Justice Healey found the office manager position remained open at the time of Par- tridge's return and the ESA mandated she be reinstated to that position. She remind- ed the parties that neither the employer nor the employee is entitled to waive the em- ployment standard, and any such contract- ing out or waiver is voided by the ESA. She also found the employer's "progressively authoritative and restrictive" responses to Partridge's insistence that she be permit- ted to work at least 30 hours each week or similar hours to her pre-maternity leave schedule constituted a reprisal for her ask- ing the employer to comply with the ESA or attempting to exercise her rights under it. As a consequence, Justice Healey award- ed Partridge $45,517.44 in losses suffered during the 12-month notice period. In addi- tion, Partridge was awarded $20,000 in hu- man rights damages. Human rights damages e Superior Court of Justice's jurisdic- tion to consider allegations of a violation of human rights legislation and award the payment of monetary compensation to an employee for an infringement stems from s. 46.1(1) of the Human Rights Code Amend- ment Act, which came into force in 2008. While this empowered the civil court to or- der damages for a breach of the code, there appears to be only four decisions in which human rights damages have been awarded. In Wilson, the court dealt with discrimina- tion based on disability and awarded $20,000 in damages. In Berkhout v. 2138216 Ontario Inc., the Ontario Small Claims Court grap- pled with discrimination on the ground of sex and awarded $15,000. In Partridge, the court dealt with another protected ground — family status. In Bray, the Ontario Small Claims Court awarded a dismissed massage therapist $20,000 for discrimination based on sex and family status. discrimination based on family status e leading Canadian authority on family status discrimination is the Federal Court of Appeal's decision in Johnstone v. Canada (Border Services Agency). e court found that family status incorporates parental ob- ligations such as child care and both parents must be unable to meet them. It also pro- pounded the four-prong legal test to deter- mine whether there was discrimination on a prohibited ground. In Partridge, Justice Healey found Par- tridge satisfied the Johnstone test. Partridge was legally obligated to ensure her children were adequately cared for while she was working. When faced with the significantly revised schedule and told it was effective immediately, Partridge testified she was placed in a complex set of childcare arrange- ments involving a number of extended fam- ily members and a neighbour, so she could be available to work until 6 p.m. While the employer's behavior, which put Partridge in that situation, could be found to have breached the ESA, it is debatable whether it was sufficient to amount to prima facie discrimination based on family status. e facts revealed that Partridge's hus- band was "self-employed" and he might be required to leave his business premises in order to pick up his children. e court's reasons offer no insight as to why it did not consider it to be a workable alternative solu- tion to the couple's childcare obligations. As such, this aspect of the decision is somewhat troubling, rendering the court's analysis in- complete. is is particularly so, because in Johnstone the appellate court made it clear the complainant is required to demonstrate that "neither they nor their spouse can meet their enforceable childcare obligations while continuing to work…" Ultimately, Justice Healey found that the discrimination experienced by Partridge in- jured her dignity, feelings and self-respect. In justifying the significant sum of $20,000 in human rights damages, Justice Healey noted that Partridge "took great pride in her job and the efforts that she had made on the defendant's behalf. At the time of her testi- mony in this trial, she remained visibly emo- tionally affected by the ordeal." is begs the question of what does this have to do with a discrimination based on family status? Moreover, when read as whole, the court's reasons seem to suggest Partridge was up- set not because the employer discriminated against her based on family status, but be- Damages on page 7 »

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